JULY 18, 2011 VOLUME 18 NUMBER 26
“Elder law” (what we practice here at Fleming & Curti, PLC) can be a fairly broad practice area. We work in estate planning, long-term care planning, guardianship and conservatorship, trust administration and probate — and each of those areas encompasses a number of other topics as well. But some variation of the question below is one of the most common questions potential new clients ask us. We want to take a moment to explain the difference between two poorly-understood legal concepts: powers of attorney and guardianship/conservatorship.
Here’s the question, distilled to its essence: We had to put dad into a nursing home. The staff there are telling us we need to get a power of attorney. Can you prepare a power of attorney for us?
Seems like a simple enough question. A power of attorney is, after all, a fairly straightforward document. You can download a form from the internet, and many seniors have already signed one. Turns out that the question is usually much harder to answer than it appears, however.
Different kinds of powers of attorney
The first issue: there are different kinds of documents that are all called “powers of attorney.” As if that wasn’t confusing enough, some states (and some practitioners) use different terms — “health care proxy,” or “patient advocate designation,” or “durable power of attorney,” for example — for what are essentially the same things.
In general terms, there are two well-recognized kinds of power-of-attorney document. One kind designates some one else who can make decisions about the signer’s health care — medical authorization, placement decisions and the like. The other names some one to handle financial matters — check signing, sale of property, transfers of assets into a living trust, even gift-giving (in some cases).
When the nursing home tells you that you need a power of attorney for your recently-admitted father, they are probably most concerned about the health care power of attorney. They want someone to be able to approve medications and treatments, to make decisions about hospitalization (or declining hospitalization) and to notify about your father’s condition and progress. They may also be interested in making sure you have power to handle his finances, especially to pay his nursing home bills — but that may not be their primary focus.
Distinguish guardianship and conservatorship
Contrast the power of attorney with the guardianship/conservatorship process. If you have to secure a guardianship or conservatorship with regard to your father, that means you will have to file a court proceeding and go through a number of mandated procedures.
You will probably be hiring a lawyer to represent you; in Arizona, a lawyer will certainly be appointed to represent your father (unless he already has his own lawyer). There will also be a medical report, and a court investigator. A process server will have to physically hand (or read) the court papers to your father. A hearing will be held at the courthouse. Once you are appointed, you will have annual reports to file with the court. If you have been appointed as conservator, you will also have to file a “surety bond” — an insurance company’s guarantee that your father’s estate will be made whole in the event that you misspend his money or otherwise behave inappropriately.
Wait — what’s the difference between guardianship and conservatorship (you ask)?
It’s a good question. Be careful about generalizing here — different states use different versions of these terms to mean different things (and sometimes they have the opposite meaning in other states). But in Arizona, guardianship is the court process to secure control over an incapacitated person’s health care and placement decisions. Conservatorship is the court process to secure control over the finances of a person who needs protection.
Roughly speaking, a guardian (in Arizona) has the same kind of authority that a health care agent might have. Meanwhile, an Arizona conservator has the same kind of powers and responsibilities that an agent under a financial power of attorney might be given.
So which do I want — power of attorney or guardianship/conservatorship?
It’s not really which one you want so much as which one you can get. A power of attorney requires a competent signer, willing to give the power (health, financial or both) to you. A guardianship or conservatorship requires the court to find that your father is not able to make his own decisions — in essence, not able to sign his own power of attorney. So our first question to you will be: what does his doctor say about his competence? What do you think: will he understand the nature of a power of attorney, and be willing to give you that authority?
If your father is already too far into the dementia process to sign a power of attorney, you may have no choice but to seek guardianship and/or conservatorship. If he is mentally pretty alert, and able to understand (and explain) the reasons why he might sign a power of attorney, it might well be appropriate to talk with him about that choice.
What are the relative costs?
Once again, it is hard to generalize. Getting your father to talk with a lawyer, discuss powers of attorney (and, probably, estate planning generally) and getting him to sign after he has agreed to the documents should probably cost a few hundred dollars — more, if it takes multiple meetings, he has unusual estate issues or wishes, or there is family discord to deal with. Guardianship and/or conservatorship will probably cost ten times as much, and assure continuing legal involvement as future accountings and reports have to be prepared and filed.
OK — I think dad will understand the power of attorney and be willing to sign it. Can you please come to the nursing home with one and get him to sign?
Would that it were that easy. A good lawyer will want to meet with your father more than once. While many make home (or nursing home) visits, they will probably charge more. And a key element of representation of your father requires that he be the client — that may mean that after we have talked about his situation extensively, we are uncomfortable being the ones who prepare his documents.
In that case, we are likely to refer him to another lawyer. We will probably suggest one geographically close to him, and give you some advice about how to make the initial contact. Basically, we want to make sure that (even if you make the call and set up the appointment) there is no question in your father’s mind that his lawyer is in fact his lawyer. You may be absolutely certain that you and he are on the same page — but we sometimes see situations where that turns out not to be the case, and we all want to make sure his wishes are paramount.
Do I really have to do any of this?
You might not, actually. In Arizona (this is not true in every state) there is a mechanism for family members to make health care decisions for someone who never got around to signing a health care power of attorney. There is a priority checklist (starting with spouses and working through family friends) for who can make decisions. One limitation: the person named in the checklist can not make a decision to withhold or withdraw life-sustaining artificially-provided food and fluids.
There is no similar mechanism for financial decisions. If your father has only his name on his bank accounts (or brokerage accounts, car title or deed to his house) then it will require either a power of attorney or a conservatorship to get authority to liquidate assets, pay bills or even request annual minimum distributions from his IRA. Quick — go look to see if he didn’t sign a power of attorney years ago.
This is all so complicated. Can’t I just get the power of attorney form, fill it out and get him to sign it?
Yes, and it will probably work just fine. If it doesn’t, you could look like you were trying to take advantage of him. If someone later decides your form is inadequate, or not properly signed, or has some other defect, you might not find out about it until after he is clearly incapacitated and unable to sign a new power of attorney. But candidly, those are not the most likely outcomes. What we offer is professional counsel, answers to complicated and personal questions, and peace of mind. We’re pretty comfortable that our services are worth what we charge.
We hope that helps. Good luck with your father, whether we see you or not. We know that this is a difficult time, filled with anxiety and unexpected challenges. There are also a number of rewards along the way, but no one should minimize the work you have undertaken.
Oh, by the way — if it’s your mother, your aunt, your son or your sister you are caring for, the answers are mostly the same.
JANUARY 3, 2011 VOLUME 18 NUMBER 1
Lawyers, of course, grapple with ethical issues constantly. Elder law attorneys see particular ethical issues recur frequently. Sometimes the lawyer’s eagerness to accomplish the client’s wishes can cloud the lawyer’s ethical judgment. Sometimes the lawyer’s fascination with what might be done can even gallop ahead of the client’s wishes.
None of that is terribly profound or original. Last month, however, we were reminded of how easy it is to get enamored of a particular legal stratagem even though it may not be appropriate in a given case. The notion surfaced in the form of a Minnesota disciplinary proceeding involving attorney Donald W. Fett.
Mr. Fett was consulted by a man (we’ll call him Richard here, just to give him a name) whose brother (let’s call him Martin) was failing. Martin had moved into a nursing home, where he was likely to spend the rest of his life. Martin was unmarried, had no children, and was worth a little more than $600,000.
Martin had already signed a power of attorney naming Richard as his agent. Minnesota law provides a simplified form for powers of attorney, and it has a space where the signer can indicate whether his agent will have the authority to make gifts, including to himself. Martin had checked the line to give Richard the power to make gifts of Martin’s property, but not to Richard himself.
Mr. Fett knew that Martin’s money would be used up in relatively short order if it had to be spent on his nursing home care. Richard had told him that Martin would not want that to happen if it could be avoided, and Mr. Fett could see a way to allow at least a portion of Martin’s money to be protected. In a letter to Richard, and in several follow-up communications, he outlined his plan.
Basically, Mr. Fett suggested that Richard could make a gift of nearly all of Martin’s money, leaving him less than $3,000 (the asset limit in Minnesota for Medicaid assistance with long-term care — note that the limit is even lower in most states). That would make Martin ineligible for Medicaid assistance, but only for a limited time. The money that Richard had given away could be given back over the next couple of years, and then the ineligibility period would expire and Richard could keep the remaining money aside until after Martin’s death. That way at least a portion of his assets could go to the people he had named in his will — including Richard, his other siblings, and some charities.
The fly in the ointment for Mr. Fett’s advice: Martin’s power of attorney had expressly prohibited gifts to Richard himself. In order for the plan to work, though, Richard would have to be confident that Martin’s money would be used to benefit Martin during the ineligibility period. It was a conundrum.
Mr. Fett’s proposed solution was to have Richard liquidate all of Martin’s investments, transfer them to a bank account in Richard’s and Martin’s names as joint owners, and then withdraw them from the bank into his own name. That way, he apparently reasoned, Richard wouldn’t be using the power of attorney in a way that was prohibited — he would instead be using general rules governing joint accounts.
Richard was apparently suspicious of Mr. Fett’s advice, and eventually he consulted another attorney. That resulted in a complaint to the Minnesota disciplinary commission, the Office of Lawyers Professional Responsibility. After hearings the Office recommended that Mr. Fett be publicly reprimanded and placed on probation for a year.
The Minnesota Supreme Court agreed, and upheld both the discipline and the sanction. The Court’s opinion takes a dim view of Mr. Fett’s argument that he was not really recommending a course of action in violation of the limitation in the power of attorney. The Court notes that even if Richard could have used the joint tenancy account to circumvent the limitations of his brother’s power of attorney, Mr. Fett’s correspondence with his client failed to explain the distinction in sufficient detail to allow Richard to make an informed decision about how to act.
The Court notes that Mr. Fett’s failure to give his client complete information could have subjected Richard to serious problems. He might be held liable to return all of Martin’s money, and perhaps even triple the amount transferred. He could even be criminally charged. Mr. Fett gave him none of that information. His failure to fully inform his client was also a failure to provide competent representation, and a violation of the ethics rules for lawyers.
Mr. Fett had been a lawyer for over thirty years, and had limited his practice to estate planning and elder law matters for about six years prior to his contact with Richard. Because of that experience in the practice, and particularly in elder law, the Court determined that the sanction could be higher than would otherwise be implemented. Mr. Fett also had a history of disciplinary actions, having appeared before the Office of Lawyers Professional Responsibility five times over two decades.
The Court also considered mitigating factors such as lack of harm to either Richard or Martin (Mr. Fett’s advice was not followed) and lack of improper motive or harmful intent on Mr. Fett’s behalf. Those were not sufficient to offset the recommendation for a public reprimand, however. In Re Petition for Disciplinary Action Against Fett, November 24, 2010.
Is there a larger message in Mr. Fett’s disciplinary proceeding? We think there is, and it is this: just because a legal strategy might work, it does not follow that it must be implemented, or even that it is a good strategy. Careful consideration of all the negatives is important, and complete information should be shared with the client.
OCTOBER 11, 2010 VOLUME 17 NUMBER 32
Imagine this: you have a long-standing history of philanthropy and community involvement. You have substantial assets and you feel that you should use some of them to enrich the community where you live, where you made your fortune, and where your children were raised. Your spouse agrees with you about these goals, and the two of you want to make sure someone has the power to continue to pursue those goals even if you become incapacitated. You should both sign a power of attorney, and name as agent someone who you know agrees with your world view, right?
That is what Irwin and Xenia Miller, of Columbus, Indiana, did. In 1995 they signed mirror-image powers of attorney naming one another as agent. They both named one of their five children and a long-time financial adviser as co-agents to act if either could not act for the other. Then they went about living their lives.
To make their intentions clear, Irwin Miller wrote a letter to the couple’s children in 1996. “Of all the things we can ‘leave to you,’” he wrote, “money seems to us to be the least important.” He went on to tell the children that he and Xenia “have not lived and worked primarily to maximize your inheritance.” “We have worked and lived to make a constructive contribution to our community, church, and nation. And — we have lived our own lives the way we wanted to live them, and have had a good time so doing.”
For nearly a decade after signing their powers of attorney and writing to the children, Irwin Miller spent significant sums on maintaining several homes in Indiana and Ontario, Canada. In fact, the upkeep costs on three properties were in the millions of dollars during this time period. Irwin made those expenditures despite the fact that he and Xenia didn’t actually own one of the properties — it had been purchased by the son they named as agent in their power of attorney.
When Irwin Miller died in 2004, Xenia Miller was already incapacitated. The two agents in her 1995 power of attorney began to handle her finances, as she had planned. They faced a quandary: should they continue to pay significant sums to maintain properties even though the payments would not benefit Xenia Miller’s estate? Even though she might not be able to enjoy visiting two of the properties any more? Even though the expenditures might actually benefit one of the agents?
Xenia Miller died in 2008. During the four years between Irwin’s and Xenia’s death, the agents under the power of attorney spent over $20 million on keeping the properties going, making improvements and (in the case of the family home) arranging to interest the Indianapolis Museum of Art in moving into the property. Concerned that the expenditures might be challenged, they ultimately filed a petition with the local probate court seeking approval of their expenditures.
One of Irwin and Xenia’s children objected, and a four-day hearing was held on the accounting filed by the agents. Among his allegations: because the agents were acting under a power of attorney, their behavior created a presumption of undue influence requiring that the payments be set aside. The probate judge listened to testimony and arguments from both sides and then approved all the transactions. The judge also ordered the objecting son to pay the legal fees incurred by the agents.
The Indiana Court of Appeals reviewed the holding and agreed that “Xenia and Irwin Miller were extraordinary individuals who did everything in their power to enrich their community, support their family, and better society as a whole.” The appellate judges upheld the probate court approval of the expenditures; they did, however, rule that the contest was not frivolous and so reversed the award of attorneys fees. In Re General Power of Attorney of Miller, September 30, 2010.
The Millers left an extraordinary legacy — on many levels. They provided for their five children. They enriched their community. They created a lasting memory of a wealthy and public-spirited family. Though they probably did not intend to leave a legal precedent that could guide others, they did. By writing what amounted to an “ethical will,” setting out not just financial inheritances but also principles he lived by and hoped would guide his children, Irwin Miller gave us another legacy: he taught us that a power of attorney can be used to carry out the intentions of the signer, even if his purposes are not solely financial.
The Court of Appeals opinion is worth reading, if only for the language of Irwin Miller’s letter to his children. For more on the extraordinary Millers, consider the Christie’s auction notice describing sale of their collection and their impact on the architecture and art communities. Xenia Miller was an extraordinary individual in her own right, with business, art, religious and civil rights credentials that earned her recognition and acclaim.
APRIL 26, 2010 VOLUME 17, NUMBER 14 A power of attorney is one of the most important, powerful and dangerous documents you will ever sign. Why is it important? Because your family has no inherent right or power to handle your finances in the event that you become incapacitated. Why is it dangerous? Because it is literally a license to steal.
Of course the agent named in your durable power of attorney is not supposed to steal from you. In fact, he or she can go to jail for doing so. But the whole point of the power of attorney is to make it easier for someone to handle your finances without court oversight, and without having to answer to banks or others. Too often agents abuse those powers of attorney.
So why is it important for you to sign a power of attorney? Because the alternative is, for most people, even more disturbing. Your family members and even your most trusted advisers are not able to handle your bank accounts, pay your bills, buy or sell property or protect against abuses by others — unless you have given them authority to do so in an appropriate document. That usually means a power of attorney.
There are alternatives, of course. You could create a living trust, name a successor trustee and transfer your assets into the trust. That may make it a little bit easier for your successor to handle your assets, but it does not provide any additional protection. You could simply add a trusted person to the title on each of your accounts — but that provides even fewer safeguards, and exposes your property to claims leveled against the now-joint owner of your assets.
Or you could simply hope never to need anyone to act on your behalf. Then when someone needs to act they will have to go through the process of securing a conservatorship over your estate (what some states call a guardianship of your estate). That provides better protection, but perhaps at a greater cost than you want to incur — and it means the court, rather than your family member or trusted adviser, having the ultimate authority.
That is why almost everyone we counsel ends up signing a durable power of attorney. That is also why it is so critical to make sure you have selected your agent carefully, warned them about the limitations on their authority, and provided them enough information so that they can act appropriately.
Washington State resident Shirley Crawford, then age 80, had a difficult problem to deal with. She had fallen in 2001 and was hospitalized. Her only child, Anne, was severely mentally disabled and lived in Ms. Crawford’s home. Ms. Crawford needed someone to help her with management of her financial affairs and care of her daughter.
Ms. Crawford turned to a long-time friend and distant relative, Judith Thompson. With the help of a lawyer Ms. Crawford signed a power of attorney form giving Ms. Thompson wide-ranging powers over her finances.
Within three months Ms. Thompson was trying to use the power of attorney to make gifts to herself. The broker where most of Ms. Crawford’s money was held refused to honor the power of attorney for that purpose, saying it did not include gift-making authority.
In the following year Ms. Thompson and her husband secured a new power of attorney from Ms. Crawford — this one specifically allowing them to make gifts to themselves. They sold her house and used more than $300,000 of the proceeds to pay off their own debts and to buy a $200,000 boat for their Alaska fishing charter business.
It took almost three more years before the state Adult Protective Services office and, ultimately, the Washington courts to begin to undo what the Thompsons had done. While investigations and court proceedings were pending, the Thompsons apparently thought it would be helpful to their cause if they had Ms. Crawford on videotape approving of the gifts they had made.
The videotape showed Mr. Thompson telling Ms. Crawford that he had compiled a series of statements from things she had told the Thompsons. The list included such items as “I wanted [the Thompsons] to have my house.” Ms. Crawford was shown nodding and agreeing with the statements as Mr. Thompson read them.
The Thompsons’ videotape never got introduced in the guardianship matter. It did, however, get used in court — in a criminal trial in which Mr. and Ms. Thompson were accused of tampering with a witness. At that trial Ms. Thompson testified that she and her husband had transferred Ms. Crawford’s assets to their name to protect her from thieves, and that the “investment” in their fishing charter business was safer than the stock market.
A jury found the Thompsons guilty of witness tampering, and the Washington Court of Appeals upheld their conviction. The appellate court ruled that the Thompsons had reason to believe that Ms. Crawford would be called as a witness in her own guardianship proceeding, and that they were trying to induce her to give false testimony. State v. Thompson, November 23, 2009.
As often happens in exploitation cases, the Thompsons insisted vehemently that they were following Ms. Crawford’s wishes, and that they intended to take care of her developmentally disabled daughter. The facts did not bear out that assertion, however — over the course of their involvement, virtually all of Ms. Crawford’s money went to the Thompsons, and none of it went to the care of Ms. Crawford’s daughter.
The Thompsons were also charged with (and convicted of) theft. That much makes an all-too-common story of exploitation of a vulnerable elderly woman. It is even common for exploiters to try to enlist their victims in an attempt to whitewash the evidence of misbehavior. What makes the Thompsons’ case stand out is their successful prosecution for what that attempt was: tampering with a prospective witness in a contested court proceeding.
Can a conservator get a waiver from the requirement of bonding, which costs my mother’s estate over $900 per year? This, along with the $300 court fee to evaluate accountings, is a tremendous amount of money. Can I get my sister to agree that this is not necessary?
[Editor's note: our weekly newsletter often deals with Arizona-specific information, and we try to remind our readers that we are providing general information that might not be applicable outside Arizona. This week's question deals with Arizona practice more narrowly than most -- no reader should assume that the rules in their own state are the same or even similar. This information is intended to be general and informative, but it is no substitute for getting specific legal advice for your own legal problems.]
Arizona requires that a “surety bond” must be posted in every conservatorship case. The Probate Court must set that bond at the estimated value of the estate plus approximately one years’ income. There are very few circumstances in which the bond can be reduced or waived.
What is a surety bond? It is essentially an insurance policy, designed to protect your mother. If you misuse her funds, or fail to meet your fiduciary duty to invest them prudently, the Probate Court could one day enter a judgment against you personally. The bond simply assures the Court that there will be funds available to pay your mother’s estate back, even though you might not have any assets reachable by the Court.
One way to reduce the size (and therefore the cost) of the bond is to place conservatorship assets under court control. This is usually accomplished by putting some or all of the money in a court-controlled and federally-insured bank account. While this may save costs, it also makes the money unavailable for daily living expenses of the ward. It is most commonly used when the money belongs to a minor rather than an adult, but it might be one way of reducing the cost of the bond.
Another choice is to ask the Judge to reduce the bond by the value of “regular fixed expenses” paid for the ward’s benefit. (See Arizona Revised Statutes §14-5411(B)) This might, for example, mean that the Court might be willing to reduce the bond amount by the cost of regular monthly nursing home or assisted living bills. Note, however, that this decision is in the discretion of the Probate Judge; it is far from an automatic adjustment.
Trust companies (like those affiliated with most major banks) are not required to pay a bond premium. Of course, you would have to turn over management of your mother’s finances to such a company in order for that to make any difference. Even then, the fees charged by the bank would almost certainly be more than the bond premium.
Getting the consent of other siblings — or even the ward herself — simply will not help. The Court is more interested in protecting your mother’s assets than in making the family comfortable with the costs.
The $300 fee charged by the Court each year to review the accounting is a little more complex. Arizona permits each county Probate Court to decide whether it will charge such a fee. If it does, the money collected must be used to pay some of the court’s probate-related expenses. Maricopa County (Phoenix, where your mother’s conservatorship is located) imposes the fee. Most counties do not levy such a fee, but it is usually not possible to change the county of administration of an existing conservatorship.
What can be done to minimize these conservatorship costs, at least in Arizona? Not much. This is one reason why durable powers of attorney are so important — and so popular.
When it comes time to complete estate planning, our clients usually have clear ideas about who should receive their property, what health care decisions they would want made — even how they feel about cremation, burial, organ donation and most of the other issues that must be addressed. What stumps more clients than any other issue? Who to name as trustee, personal representative (what we used to call an “executor”), and agent under health care and financial powers of attorney.
Some of the common questions we hear from clients about whom to select:
Is it acceptable to name a child who lives out of state? Yes, at least in Arizona, which does not require in-state residency for any of the various fiduciary roles. With e-mail, fax machines, overnight delivery and other modern communications options, there is usually little difficulty for your son on the east coast (or even your daughter in Japan) to communicate. In fact, we frequently observe that we may have an easier time communicating with your the Iowa sister you named as agent than your nephew who lives on the east side of Tucson.
There is one small exception to that rule, and it is more practical than legal. We generally counsel that the ideal health care agent should live near you. Reviewing medical records, talking to doctors and caretakers, and developing a clear picture of your condition is much easier for someone nearby.
Can I name several, or all, of my children as co-agents, co-trustees, etc.? Yes, though we may try to discourage you from naming multiple fiduciaries. To the extent that you are trying to avoid family disputes, it is our experience that giving everyone equal authority tends to encourage disagreements. We will probably suggest that you might want to name your daughter (the banker) as financial agent, and your son (the nurse practitioner) as health care agent — and each as back-up to the other. If you really want to give them joint authority, though, there is no legal reason not to do so.
Speaking of which, is it better to name different people to health and financial roles, or give the same person authority over everything? There is no clearly correct answer. You know your family (and their strengths and weaknesses) much better than we do. If there is one person who is capable in all areas, by all means give that person authority as health care agent, financial agent, personal representative and trustee. You can segregate the roles as a means of providing checks and balances, or to give everyone reassurance that you value their input.
Do I have to tell everyone involved who will have which authority? No. But as a practical matter, we encourage you to do so. We want your daughter to realize, for instance, that she is the one who needs to make arrangements if something should happen to you. We hate to see someone show up, ready to act — and then find out they have no role. That creates confusion, and obviously can engender hard feelings.
We hope that you will share your estate planning documents with all your family (and any non-family members named as trustee, agent, or personal representative). There is no legal requirement that you do so, but it does increase the likelihood that any problems can be worked out while you are still alive, competent and in charge of your own decisions.
Recently two different state courts addressed the exercise of authority made pursuant to a durable financial power of attorney. These cases illustrate why care should be taken both in drafting a power of attorney and in choosing an agent.
In Florida, after David R. James II died, four children from his first marriage tried to evict their father’s widow from the home the couple had shared. Mr. James’ children argued that they could evict Rosalie James because David James, III, using his father’s power of attorney, had taken title to the home during Mr. James’ life.
The Florida Fifth District Court of Appeal upheld the lower court ruling in Rosalie James’ favor. The Appellate Court based its decision in part on Rosalie James’ argument that her husband’s power of attorney did not authorize gifts in excess of $10,000 per child — an amount far less than the value of the home. Robert James v. Rosalie Kaye Bruno James, March 7, 2003.
Meanwhile in North Dakota, Rodger and Paul Marquardt also ended up in court after their mother, Laura Marquardt, died. Rodger claimed that all proceeds from an annuity his mother had purchased should belong to him since his mother named him as beneficiary. However, the agent his mother named under her power of attorney, First Western Bank & Trust, had changed the annuity beneficiary prior to Mrs. Marquardt’s death.
Rodger argued that his mother’s power of attorney did not authorize her agent to change the beneficiary. The trial court agreed with Rodger about the power of attorney and that his mother’s will made clear that the annuity was his. While brother Paul appealed the ruling, he did not challenge the lower court’s decision about the power of attorney. First Western bank & Trust v. First Lutheran Church Foundation, Supreme Court of North Dakota, February 19, 2003.
Elder Law Issues periodically reminds its readers that powers of attorney are important, powerful and potentially dangerous instruments. Since 1998 in Arizona, agents under powers of attorney have been prohibited from taking any step for the benefit of anyone except the person who executes the power of attorney (the principal) unless the power is expressly listed and separately initialed by the principal and a witness. Powers of Attorney must be witnessed and notarized; the witness must be able to say that the principal acted freely and not under duress.
Arizona’s law reflects a growing concern about abuses tied to powers of attorney. Selection of an agent and the choice of powers to grant that agent both require careful consideration.
